TO:
Lina Swan, Director of Fiscal Operations
FROM:
Stephen H. Clark, Administrative Law Judge
DATE:
May 4, 2005
RE:
Request for Direct Payment
Claimant:
Contractor:
Contract #
City/Town:
Amount:
J. M. Cook Co., Inc. (Cook)
Roads Corporation (Roads)
Contract #30157
Franklin (Pond Street Reconstruction)
$2,925.00
1. I have reviewed the direct payment demand (Demand) by Cook dated April 26,
2005 and received by the Department on April 29, 2005. For the reasons set forth
below, I find the Demand as filed does not comply with the requirements of G.L.
c.30, s.39F (Section 39F) and must be rejected without prejudice.
2. Section 38F requires that the Demand be “sent by certified mail” to the general
contractor at the time it is mailed to the awarding authority. Although the
Demand recites that it was sent certified mail to the Department, no statement or
proof of certified mailing to Roads appears. Because no statement or proof that
the mailing requirement appears—as for example, by reciting the number on the
postal mailing receipt—Cook failed to meet the mailing requirement of Section
39F.
2. Section 39F requires that a “demand shall be by sworn statement.” That
requirement of Section 39F is typically met by a statement such as “The
undersigned swears under the pains and penalties of perjury that the statements
made in this direct payment demand are true, complete and correct.” Cook’s
Demand is not sworn. This fatal defect alone requires rejection of the Demand.
3. Section 30F requires that the Demand contain “a statement of the status of
completion of the subcontract work.” Cook states that “[a]ll of the items of Work
relative to Cook Invoice #2280 were completed in the late spring and early
summer of 2000….” Because that statement is not under oath it cannot be
considered. However, as it is likely that Cook will refile a demand, I point out
that Section 39F appears to require that a subcontractor’s statement of
completeness should be made with respect to the subcontract work as a whole, not
work billed under a single invoice. See Section 39F(1)(d).
4. Section 39F requires that a “demand shall contain a detailed breakdown of the
balance due under the subcontract.” Cook’s Demand fails to meet this statutory
requirement as well. Cook’s Demand contains no “detailed breakdown” at all—it
merely attaches various documents to a letter and apparently seeks to have the
Department read the attachments assess their significance. Section 39F, on the
other hand, plainly requires that a subcontractor demand contain detailed
breakdown of the balance due under the subcontract. This Cook must do if it
refiles its Demand under Section 39F.1
5. Cook’s Demand is rejected without prejudice; it may refile a new Demand at
another time.
6. Accordingly, take no further action on this Demand.
cc:
J. M. Cook Co., Inc.
252 Milford Street
Upton, MA 01568
The Roads Corporation
241 Treble Cove Road
North Billerica, MA 01852
Deputy Chief Engineer, Construction
District Highway Director, District 3
1
In the event Cook files a renewed demand at a later date that demand should contain a “detailed
breakdown of the balance due under the subcontract” that clearly sets forth the original value of the
subcontract, all additions to the subcontract through Department approved amendments, all pending but
unapproved amendments, all payments made by the general contractor for work done, any retainage held,
all credits, back charges and all other information needed to demonstrate what Department approved work
was done but remains unpaid.